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Media Alerts - Brodsky v. U.S. Nuclear Regulatory Comm'n - Second Circuit
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January 8, 2013
  Brodsky v. U.S. Nuclear Regulatory Comm'n - Second Circuit
Headline: Second Circuit Remands for Further Consideration of Basis for Nuclear Regulatory Commission's Failure to Involve the Public in a Decision to Grant Indian Point Nuclear Facility a Challenged Exemption from Fire Safety Regulations.

Area of Law: Environmental; Energy Law; Adminstrative Law

Issue(s) Presented: Whether there was sufficient evidence to determine whether the Nuclear Regulatory Commission properly exercised its discretion in granting the Indian Point Power Plant an exemption to certain fire safety requirements without allowing for public input.

Brief Summary: Plaintiffs, environmental groups and New York State Assemblyman Richard Brodsky, brought an action challenging, on several grounds, the United States Nuclear Regulatory Commission's ("NRC") 2007 decision to grant the Indian Point nuclear power facility located in Westchester, New York, an exemption from various fire safety regulations. The United States District Court for the Southern District of New York granted summary judgment to the NRC, dismissing the challenge in full. The Second Circuit affirmed the district court judgment in part, but reversed and remanded for further consideration the question of whether the exemption was granted in violation of the public participation requirements under the National Environmental Policy Act.

To read the full opinion, please go to: http://www.ca2.uscourts.gov/de...874fa/2/hilite/


Significance (if any):

Extended Summary (if applicable):

In 2007, defendant United States Nuclear Regulatory Commission ("NRC") granted defendant Entergy Nuclear Operations Entergy an exemption from various fire protection requirements at its Indian Point nuclear power facility located in Westchester, New York. That same day, the NRC published a related Environmental Assessment ("EA") and Finding of No Significant Impact ("FONSI") supporting the exemption. The NRC denied requests filed by the New York State Attorney General's Office and then the plaintiffs here, environmental groups and New York State Assemblyman Richard Brodsky, to reconsider the exemption and to allow for public input. Shortly thereafter, plaintiffs brought this action challenging to the NRA's decision to grant the exemption, claiming it was made in violation of various provisions of the Administrative Procedure Act, Atomic Energy Act and the National Environmental Policy Act ("NEPA"). The United States District Court for the Southern District of New York granted summary judgment for defendants Entergy and the NRC, dismissing all claims.

The Second Circuit affirmed the district court judgment in part, but reversed and remanded for further consideration the question of whether the exemption was granted in violation of the public participation requirements under the National Environmental Policy Act. Noting both that "public scrutiny" is an "'essential'" part of the NEPA process and that agencies have "considerable discretion to decide the extent to which such public involvement is 'practicable,'" the Second Circuit resolved that its role on appeal is to consider whether a lack of public involvement "prevented the agency 'from weighing all the factors essential to exercising its judgment." The Second Circuit expressly declined to adopt any "rule as to the degree or form of public participation required," but, instead, issued the narrow holding that because there was no record of any public involvement at all, nor any reasoning for the NRC's determination that no public input of any kind was "practicable," the matter should be remanded so the NRC to supplement the record.

To read the full opinion, please go to: http://www.ca2.uscourts.gov/de...874fa/2/hilite/


Panel (if known): Circuit Judges Sack and Raggi and District Judge Swain by designation

Argument (if known): 05/03/2012

Date of Issued Opinion: 01/07/2013

Docket Number: 11-2016-cv

Decided: Affirmed in Part, Vacated in Part, Remanded

Case Alert Author: Elyse Diamond Moskowitz

Counsel (if known): Richard L. Brodsky, Esq., White Plains, New York, for
Plaintiffs-Appellants. Benjamin H. Torrance (Sarah S. Normand, on the brief), Assistant
United States Attorneys, on behalf of Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Defendant-Appellee. Kelly A. Berkell, Office of Assemblywoman Amy R. Paulin, Scarsdale, New York, for Amicus Curiae New York Legislators.

Author of Opinion: Judge Raggi

Edited: 01/08/2013 at 12:54 PM by Elyse Diamond

    Posted By: Elyse Diamond @ 01/08/2013 11:06 AM     2nd Circuit  

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